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submitted: March 24, 1983.


No. 3349 PHILADELPHIA, 1981, Appeal from a PCHA Order of December 14, 1981, in the Court of Common Pleas, Criminal Division, of Montgomery County, No. 3523-76.


John P. Yatsko, Norristown, for appellant.

Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Hester, Johnson and Popovich, JJ.

Author: Hester

[ 318 Pa. Super. Page 21]

Appellant, Johnny Baker, was charged with assault by prisoner, recklessly endangering another person, possessing prohibited offensive weapons, two counts of possessing instruments of crime, two counts of simple assault, and two counts of aggravated assault. These charges resulted from appellant's unprovoked attack upon fellow inmate, George Ingram, on August 17, 1976, with a four-inch pair of trimming shears while both men were incarcerated in the State Correctional Institution at Graterford, Pennsylvania.

On January 27, 1977, appellant was brought before the Court of Common Pleas in Montgomery County, Pennsylvania, for a non-jury trial. An assigned attorney from the Montgomery County Public Defenders' Office appeared on appellant's behalf; however, appellant insisted upon representing himself. Thereafter, the court conducted a colloquy in an attempt to assure the validity of appellant's waiver of counsel. Satisfied that appellant was fully aware of the charges and his constitutional rights, those remaining and those waived, the court permitted assigned counsel to withdraw and proceeded to conduct the non-jury trial with appellant promoting a pro se defense.

[ 318 Pa. Super. Page 22]

Appellant was found guilty of simple assault; he was acquitted on the remaining charges. At sentencing on April 29, 1977, appellant was ordered to serve a term of imprisonment of not less than one nor more than two years in a State Correctional Institution. This term was to run consecutively to those under which appellant was serving at the time of the offense. Appellant also appeared at sentencing without legal representation, and no colloquy was conducted at sentencing to determine the validity of appellant's continued waiver of his right to counsel.

Although appellant made oral post trial motions immediately following trial, no appeal was taken from the judgment of sentence; instead, appellant filed a pro se petition for post conviction relief. The Commonwealth filed a motion to dismiss and an answer to appellant's petition. Appellant was represented by counsel at oral argument on his P.C.H.A. petition. The lower court briefly took the matter under advisement prior to denying appellant's prayer for relief. This appeal followed.

Appellant seeks a new trial on grounds that he did not knowingly, intelligently and voluntarily waive his right to counsel at trial. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court considered the Sixth Amendment and both English and colonial jurisprudence as bases for holding that an accused possesses the constitutional right to proceed with his defense without the aid of counsel. As noted by the Faretta court, the Sixth Amendment provides the minimum procedural due process rights of notice of the nature and grounds for each charge, confrontation, compulsory process for securing witnesses and the assistance of counsel. These rights belong solely to the accused, and they are aids to a "willing defendant." Therefore, according to the Faretta court, it would contravene the logic of the Sixth Amendment to force counsel upon an unwilling defendant, thereby promoting counsel as the master of the accused, rather than as his assistant.

[ 318 Pa. Super. Page 23]

The Faretta court dismissed any conceivable conflict between the accused's right to be prosecuted only where he was accorded the opportunity to defend himself with legal assistance, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and the accused's option to proceed with counsel; the former maxim does not compel an accused to defend criminal charges with the aid of counsel.

Accordingly, in this case, the lower court would not simply dismiss appellant's wishes, as expressed in the following portions of the colloquy at trial:

THE COURT: Well, you started to say something that you didn't want Mr. ...

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